Thursday, January 23, 2020

Statements at pretrial hearing suggest Missouri federal judge Doug Harpool already has made up his mind about guilt in child-pornography case of Scott J. Wells

Doug Harpool
A federal judge in Missouri has publicly stated how he expects a criminal trial to go, even though he's not set to hear it until March 2020.

U.S. District Judge Doug Harpool made the statements in a hearing for the child-pornography case of United States v. Scott J. Wells, which we have covered extensively -- mainly because the government's criminal complaint states Wells took two relevant actions at the exact same time, which of course is physically impossible and means Wells, as a matter of fact and law, is not guilty. Also, Wells has had four different court-appointed lawyers, and apparently not one of them has read the complaint closely enough to point out the exculpatory segments to the court -- and they have done little to nothing to prepare a defense for a defendant who clearly did not commit the alleged offense, as proven by the government's own documents.

Harpool's statements, which came in a hearing to withdraw Wells' guilty plea and appoint a fourth lawyer (Stuart a hearing tHuffman, who apparently has done virtually nothing to prepare a defense, just like his three predecessors), are improper at best and highly prejudicial at worst.

Harpool's comment are particularly disappointing because I have thought he might be one of the few good guys in the federal judiciary.  A lifelong Democrat, as best I can tell, Harpool served 10 years in the Missouri House of Representatives and was nominated to the federal bench by Barack Obama in 2013. I'm a two-time Obama voter, so Harpool and I are on the same side of the political fence.

On top of that, we grew up together, to an extent. We both went to South Kickapoo Junior High (now Cherokee Mddle School) and played on the basketball team there, while also playing on the same youth baseball team (Dave's Angels). I used to have all of our team pictures, until abuse from Republican political and legal thugs caused my wife, Carol, and me to lose our home of almost 25 years in Birmingham -- with my photos and other mementos lost to the wind in the process.

Bottom line, I've always liked Doug Harpool and considered him to be an honorable person, but his comments regarding the Wells case suggest arrogance has eaten at his brain, he sides 100 percent with the legal tribe and the interests of law enforcement. or he never was the good guy I thought him to be (or maybe a combination of all three).

The Doug Harpool I thought I knew as a child would try to have some appreciation for what it's like to be falsely accused of a crime and to have a series of lawyers make no serious efforts to prepare a defense. That Doug Harpool seems to no longer exist, and the guy who now wears a robe is a suck-up for prosecutors and compromised attorneys, while being downright rude to a defendant and his family.

Harpool even hinted he might seek to prosecute Wells' 77-year-old mother, Nancy, for filing a court document on her son's behalf while serving as his power of attorney. Harpool's response, which can be seen on the first page (p. 25) of the document embedded at the end of this post, marks him as a bullying asshole, in my view:

THE COURT: Is that in Greene County?


THE COURT: Has she got a law license?


THE COURT: Well, I'll refer that to the U.S. Attorney's Office to determine whether the filing of that document constitutes the unauthorized practice of law, under the laws of the State of Missouri.

Even worse than that, Harpool strongly hinted he already has made up his mind about how the trial will proceed -- and about Scott Wells' guilt. This begins on p. 30 of the embedded document below:

THE COURT: I think you have a complete misconception of what this trial's going to be like. They're going to call the law enforcement officer; he's going to say you admitted your guilt. They're going to have the officer who reviewed the computer who's going to go through and show the jury images and searches on the computer, and the government will have made their case against you.

Then it will be -- you don't have to testify; it may be over at that point. If you want to say I didn't do it, it got on some other way, I don't know how you're going to say that without taking the stand or having an expert. I don't know of any expert who could support that. You may have one. Mr. Shuler is not an expert in computer technology.

That's not the only time I was referenced in the proceedings -- at one point, Harpool referred to me as "the blogger" -- and I agree that I'm not an expert on computer technology. But I apparently am an expert on the criminal complaint, given that no one else seems to have read it closely enough to show that it exonerates Scott Wells. If I were designated an expert on that subject and allowed to testify, there would be no need for any other experts; the case would be closed.

More importantly, notice the highlighted sentence in yellow above. It shows that Harpool is inclined not to believe Wells' expert witness. Just above that, Harpool suggests he's willing  to believe most anything that comes out of the mouth of a government witness. That's odd because it's perfectly realistic to think an expert for Wells could show government experts botched their analysis and could not show that Wells "knowingly" placed the contraband on his computer or took "affirmative steps" to exert "dominion and control" over it. Those are the key elements in play for a child-porn case, and Harpool seems cavalierly unaware of that.

How is this for irony? Harpool praises Wells' first three lawyers -- David Mercer, Shane Cantin, and Brady Musgrave -- as three of the finest in Southwest Missouri. The judge also notes that an expert witness should be an essential part of Wells' defense. Did any of those three lawyers (including No. 4, Stuart Huffman) do anything to arrange an expert for Wells? Nope. In essence, Harpool is admitting Wells' lawyers have not been doing their jobs, but he thinks they are great lawyers, anyway.

The first five pages of the hearing transcript are devoted mainly to Wells' questions about why he is being detained, given that he is in a wheelchair and clearly is not capable of being a danger to society. Harpool's answer, in so many words, is "You are being detained because most other defendants on child-porn charges are detained." Consider these words from p. 26 of the transcript:

THE COURT: I will tell you that the overwhelming majority of people charged with child pornography -- not all of them, but the overwhelming majority of people charged with child pornography, are detained in our district.

Is that how our "justice system" is supposed to work -- you get detained because other people have been detained on similar charges? The answer, of course, is no. Perhaps there was at least probable cause in those other cases. In Wells, there is no probable cause because the defendant is charged with actions that are physically impossible to commit.

Perhaps the most alarming part of the hearing transcript is that both Harpool and prosecutor James Kelleher state Wells is being detained partly because he pleaded guilty to child endangerment in a 2004 state case where the original charge was child sexual abuse. Wells initially was convicted on the original charge, but that was overturned when at least one complaining witness was found to have lied under oath, and the court found Wells' lawyer (my brother, David Shuler) provided ineffective assistance of counsel. Here is Kelleher's statement on his issue, beginning on p. 26 of the transcript below:

MR. KELLEHER: . . . But Mr. Wells needs to know that Judge Rush was well aware of the fact that while Mr. Wells was charged with sexually abusing a number of children, he ultimately pleaded guilty to endangering the welfare of a child.

Here is Harpool's comment, from p. 29 of the transcript:

THE COURT: . . . You're being held for it because there was a presumption, and you did plead guilty to endangerment of a child, according --which would be another related issue.
Are these statements true, did Scott Wells plead guilty to child endangerment? Not even close. The record plainly shows Wells entered an Alford plea to dispense with the case, and as we've reported previously, "With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence." In other words, Wells did not plead guilty to child endangerment, and the record shows he did not harm anyone -- child or otherwise.

So, how could Kelleher and Harpool get the law on this so wrong? Based on local news reports, the federal court in Springfield, MO, hears a high volume of child-porn cases. It's possible Harpool is weary of hearing them and come to believe everyone facing such charges is guilty. Harpool even hinted at such, on p. 32 of the transcript:

THE COURT: I will tell you that the images I see in child pornography cases are shocking and sickening to me when I look at them, and I look at them in multiple cases. I am concerned about what the reaction of 12 lay people off the street is going to be when they see these images as described in the plea agreement. But if you think they can look past that and hear your defense, I'm going to let you withdraw your guilty plea.

As for your humble blogger, Harpool had this to say on p. 33:

THE COURT: Remember, all these family who think they're helping you aren't lawyers, nor is Mr. Shuler. I have nothing against him. We got along fine in junior high, but that was about 45 years ago. But you're the one doing the time, do you understand that?

The judge seems to have favorable memories of me, and I had similar memories of him. But this hearing transcript makes me think more than three decades in the legal profession have carved out a chunk of his soul, made him forget what it means to be a fair and impartial judge.

Without question, Harpool should be disqualified from hearing the Wells case.

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